JOHNSON et al. v. HAMPTON, 8 S.W.2d 640

CURETON, C. J. This is a suit in" trespass to try title, wherein the defendant in error, J. M. Hampton, brought suit against the children and heirs of Grant and Angelina Collins for a 25-acre tract of land in Morris County. This tract of land was the homestead of Angelina and Grant Collins at the time of their respective deaths, which were in 1918 and 1919, and had been their homestead since 1889. Grant and Angelina Collins both died intestate, leaving the plaintiffs in error as their sole heirs. Some time, after the death of the last survivor, Grant Collins, J. R.

Hampton was appointed administrator of the community estate of Grant and Angelina Collins. Several claims were filed in the probate court, and thereafter by order of the court Hampton, as administrator, sold the land to the defendant in error, his brother, in order to raise funds for the payment of debts. At the time of this administration, and for many years prior thereto, Palina Johnson, one of the heirs, was living upon and occupying the entire 25 acres. The land was in fact the separate property of Angelina Collins, but it was the homestead of both Grant and. Angelina.

The trial court rendered judgment in favor of the defendant in error, on the ground that he was an^nnoeent purchaser for value of this old homestead property. Upon appeal the Court of Civil Appeals rendered judgment in favor of the defendants in error for an undivided one-half interest in the land, and also judgment in favor of Palina for an additional one-eighth interest. It is unnecessary for us to discuss the basis of the judgment by the Court of Civil Appeals. The facts about the case, in so far as we deem them controlling, are undisputed.

The tract of 25 acres of land was the homestead of Grant and Angelina Collins. The defendants in error were their heirs. The probate record shows that the debts for which this property was sold were the two coffins in which Grant and Angelina were buried, a telephone account dated long after the deaths of both of them, and the estimated expenses of the administration. It is perfectly obvious that all the so-called debts for the payment of which this homestead was sold were contracted after the deaths of both Angelina and Grant Collins.

It is also perfectly apparent that the land was not sold for the payment of the purchase money, or a part there-' of, or for taxes due thereon, or for work and material used in constructing improvements thereon, contracted in the manner prescribed by the Constitution. It is unnecessary to discuss the question at any very great length. The probate court had no jurisdiction whatever to entertain an administration of this estate.

The Constitution, art. 16, § 59, declares that the homestead shall be protected from forced sale for the payment of all debts except those within the three classes named above, and the rule is that unless such debts exist, the homestead passes free of all charges to the heirs on the deaths of the parents. On the death of Angelina Collins her interest in the property passed to her children free of all debts of every kind and character, except those permitted by the Constitution, charged, however, with the right of Grant Collins to live on the land so long as he wanted to make it a homestead.

When Grant Collins died, his interest in the homestead passed to the children free of all debts and charges of every kind and character, except those specially permitted by the Constitution. Cline v. Niblo (Tex. Sup.) 8 S.W.(2d) 633, this day decided, but not yet [officially] reported, and eases therein cited. In this instance the record shows that the property was not subject to administration, and all the orders and decrees of the probate court concerning the same were and are void, in so far as they relate to the sale of this homestead property.

Since the decree under which the defendant in error purchased the land was void, he has no rights as an innocent purchaser. Cline v. Niblo, cited above. The defendant in error did not testify, and therefore we are uninformed as to whether or not he knew this property was the homestead of Grant and Angelina Collins; and it is not a matter of any importance in this case. The Constitution protects the homestead of the family from forced sale, except in certain instances, to which we have already referred.

It does not list in these exceptions to the protecting clause of the Constitution instances where the homestead may be sold to some one who did not know it was a homestead, and, as we have stated in another case, the fact that it was a homestead can be shown in a collateral inquiry. Cline v. Niblo, supra.

It follows from what we have said that the plaintiffs in error are entitled to recover, and the judgments of the district court and Court of Civil Appeals are both reversed, and judgment is here rendered, for the property in controversy, for the plaintiffs in error. ©rnFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes